Punjab

Ludhiana

CC/19/400

Yashpal Sharma - Complainant(s)

Versus

DHL Express (India) Pvt. Ltd - Opp.Party(s)

Ajit Paul Adv.

05 Jun 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:400 dated 20.08.2019.                          

                             Date of decision: 05.06.2023

Yashpal Sharma aged 46 years son of Roshan Lal, resident of H.No.121, Police Colony, Ward No.12, Jamalpur, Ludhiana.                                                                                                                                         ..…Complainant

                                                Versus

1.DHL Express (India) Pvt. Ltd, Registered Office at 801-A, Silver Utopia, 8^th Floor, Cardinal Gracias Road, Chakala, Andheri      (East), Mumbai-400099, through its Director/Managing Director.

2.DHL Express (India) Pvt. Ltd, Branch Office at SSS-22 & 22, Sector-39, Samrala Road, Opp.NRI Police Station and Sacred Heart School, Ludhiana, through its Director/Authorized Signatory.                                                                                                                                          …..Opposite parties 

          Complaint under Section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. Amrik Singh, Advocate.

For OPs                         :         Sh. Rajeev Abhi, Advocate.

 

ORDER

 

PER SANJEEV BATRA, PRESIDENT

 

1.                Cruxly put forth the case of the complainant is that the niece of the complainant namely Mrinal Sharma is resident at UK. On 02.01.2019, the complainant visited the office of OP2 for sending two packages of material/goods to his niece at UK. The OP2 checked the material/goods of the complainant and took weight of the material and agreed to send it to the address of niece of the complainant. The complainant paid an amount of Rs.24,990/- to the OP2 for sending the material/goods to the address of niece of the complainant and the OP2 issued a receipt having DHL AWB No.312494446 in the name of the complainant and also gave assurance that the said package of complainant shall be reached at the destination within 4 days . After about a week, when the packages of the complainant did not reach to his niece, then the complainant approached the OP2 in this regard who told the complainant to wait for 2/3 days more. After about 4/5 days, the complainant again approached the OP2 to know about the status of the packages, the OP2 postponed the matter on false pretext. On 8.2.2019, when the complainant again approached the OP2, the OP2 handed over the said packages to the complainant alleging that there was some oily material in the said packages and that is why, the said packages have been returned back from London Airport. When the complainant told that the said fact did not disclose by the OP2 at the time of sending the packages but OP2 failed to accede the genuine request of the complainant and also did not return back the amount of Rs.24,990/- to the complainant despite repeated requests. Such act and conduct of OPs is claimed to be deficiency in service and unfair trade practice on their part. Further, the complainant has served a legal notice upon the OPs on 27.02.2019 posted on 02.03.2019 calling upon them to pay compensation of Rs.2,50,000/- and also to return back the amount of Rs.24,990/- along with interest but OPs failed to do the needful in this regard. Hence, by filing the present complaint, the complainant has sought directions against the OPs to pay an amount of Rs.2,50,000/- as compensation on account of negligence and deficiency in service on the part of the OPs. Further, directions has been sought against OPs to pay Rs.24,990/- along with interest @24% per annum along with Rs.11,000/- as litigation expenses.

2.                Upon notice of the complaint, opposite party no.1 and 2 appeared and filed written statement and assailed the complaint on the ground of maintainability; the complainant has not come to this Hon’ble Commission with clean hands and has suppressed the material so as to receive the compensation as he has failed to made any specific averments in the complaint like what were the contents in the shipment, why did he not track the shipment status online by using airway bill number, why did he not write a form complaint/email to the customer care team of OPs, why did he remain silent from booking of shipment until it returned and delivered back to the complainant. The complainant has not disclosed the substantial fact that as per available records and airway bill details, which is legal and binding contract, the shipment was sent to the destination which returned back due to non-clearance at customs in UK. Further, the complainant has not disclosed that while ordering services of OPs, the complainant agreed for DHL Express terms and conditions of carriages which is legal and binding contract and thus, liability of the OPs, if any, is strictly limited to direct loss and damage to a shipment but as per DHL terms and conditions only. It has been submitted that in this case, neither the shipment is lost nor it is damaged but returned back safely to the complainant due to its rejection at customs clearance in UK, which was beyond control of the OPs. The complainant has not disclosed that OPs, as prudent and professional courier, brought back the shipment from UK, post non-clearance of customs, to India at its own cost and delivered it back to the complainant without charging import customs only. Further, it has been submitted that Ops are international parcel/document delivery services provider and in the course of their business provided services to the complainant of air shipping a shipment in two pieces alleged to contain “Personal Goods Send For Personal Use” weighing together about 50 Kg from Ludhiana, Punjab to Mrinal Sharma, Cambridge, UK, under shipment way bill No.3124944406 and the shipment was booked on 2.01.2019. The shipment was brought in a parcel from which already packed before it was brought for its booking, therefore, OPs could not see the contents in the parcel/shipment. It was the complainant who made declaration himself that it was containing “Personal Goods Send for Personal Use”. Further, it has been submitted that OPs are just a courier company and book shipments based on declaration given by shipper and as per its standard process, it does not open the shipment but rely on declaration given by the shipper. The OPs does not render any packaging services, but renders only courier services. In the instant case, shipment was returned back due to non-clearance of customs in UK, and it was delivered back to the complainant safely, without any loss or damages as admitted in the complaint. Further, it has been submitted that the shipment did not qualify the customs check at destination due to the goods having oily contents, which was not default of the OPs.

                   On merits, opposite party No.1 and 2 reiterated the crux of averments made in the preliminary objections. They further alleged that the complainant was informed that while returning back the goods to India it may attract import customs duty, however DHL would get it duty free for the complainant as good business gesture. Further, it has been alleged that the OPs charged for its services and rendered its services as per contract. It is denied that the Ops are liable for any compensation more particularly Rs.2,50,000/- besides Rs.24,500/- paid as service charges. Opposite party No.1 and 2 denied any deficiency in service on their part and in the end, prayed for dismissal of the complaint with costs.

3.                In support of his claim, the complainant tendered his affidavit Ex.CA in which he reiterated the allegations and the claimed the compensation as stated in the complaint. The complainant also tendered documents i.e. Ex. C1 is the copy of shipment/cash receipt dated 02.01.2019, Ex.C2 to Ex.C4 are the copies of retail invoices/bills issued by Kips Corner qua the purchase of different items, Ex.C5 is the copy of legal notice dated 27.02.2019 issued by the complainant to the OPs, Ex.C6 and Ex.C7 are the copies of postal receipts and closed the evidence.

4.                On the other hand, counsel for the opposite parties tendered in evidence affidavits Ex.RA of Sh.Chandrasen Upadhyay, Legal Manager of DHL Express of OP1 and that of supplementary affidavit Ex.RB of aforesaid Sh.Chandrasen Upadhyay along with documents Ex.OP1 i.e.copy of board meeting resolution authorizing Mr.Chandrasen Upadhyay to act on behalf of the company in the urgent matter, Ex.OP2 is copy of DHL Express terms and conditions of carriage, Ex.OP3 copy of rejection letter, Ex.OP4 is the copy of letter sent written by the complainant to the Deputy Commissioner of Customs qua waive of the duty charges, Ex.OP5 is copy of letter sent by the Cluster Manager-Retail to the complainant qua sending account details and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.

6.                Admittedly, on 02.01.2019, the complainant sent two packages having volumetric weight of 50 Kg from Ludhiana to Cambridge, U.K. for his niece namely Mrinal Sharma declaring it to “Personal Goods Send For Personal Use” and paid freight charges of Rs.24,990/- on the basis of volumetric weight. Airway bill/cash receipt bearing No.DHL AWB No.3124944406 (Ex.C1=OP2) was generated. Prima-facie issuance of airway bill/receipt for cash receipt amounts to acceptance of DHL terms and conditions as mentioned in Ex.OP2 and it is a concluded contract between the complainant and OPs. However, the shipment was transported to its destination by the OPs but when it reached at London, UK for its custom clearance, the same was rejected as the packages were having some “Ghee” the prohibited item. On 09.01.2019, the OPs vide their email Ex.OP3 informed the complainant about rejection of shipment by customs and return of the packages may be attract import duty in India but at the same time also assured for duty free clearance. The complainant becoming aware of the rejection of the goods requested the OPs to get the duty of Rs.8416/- waived off and to get the same cleared without payment of custom duty. On 08.02.2019, both the two packages were returned back to the complainant without levying of any charges. The complainant sent a legal notice dated 27.02.2019 Ex.C5 through postal receipts Ex.C6 and Ex.C7 to the OPs wherein he claimed deficiency in service and sought refund of freight charges paid to the OPs along with compensation.

7.                It is evident from the chronological events referred herein before that at the time of the booking of the shipment, the complainant had specifically declared the goods to be of personal in nature and is being sent to his niece for her personal use and he also produced invoices Ex.C2 to Ex.C4. It was the first and foremost duty of the complainant to make true and full disclosure of the descriptions of the goods, so that it may not entail any penalty during its transit. Apparently, non-mentioning of any disclosure about the fact that the packages contained ‘Ghee’ amounts to suppression of facts on the part of the complainant. Further, the complainant had acknowledged the DHL terms and conditions as contained in Ex.OP2 at the time of booking of the shipment on 02.01.2019 and these terms are inconsonance with the applicable International Conventions. It is pertinent to note that the shipment was promptly transported to its destination and was produced before the customs authorities in London, UK where its clearance was rejected. Obviously reasons for rejection of shipment were beyond the control of the OPs and rather same are attributable to the complainant who did not disclose the shipping of prohibited items at the time of its booking. The OPs acted like a prudent and professional courier who brought back the shipment from UK post non-clearance of customs to India at their own cost and delivered back to the complainant without charging any import duty. Even otherwise, the liability of the OPs is limited one and that too in case of non-delivery of the goods due to loss or damage to the goods during transit. But in the present case, it does not fall within these stipulations and hence even limited liability of OPs does not arise at all. The initial burden to prove the deficiency in service was upon the complainant but the complainant has failed to discharge the same.

8.                In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

“19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr., whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint was filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

9.                In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

10.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.           

11.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)             (Sanjeev Batra)

Member                         Member                              President        

 

Announced in Open Commission.

Dated:05.06.2023.

Gurpreet Sharma